Click the link to read the article on the Sibley’s Rivers website (George Sibley):

We’re seeing not just being at the table, but actually having an influence on the agenda. We’re looking at the next step – because you can have a seat at the table, but not be taken seriously. And tribes, especially now in regards to water, we have to be taken seriously. – Stephen Roe Lewis, Governor  Gila Indian River Community

In the last post, I took a closer look at one of the Colorado River Basin’s 30 First People tribes in the Colorado River’s natural basin, the Southern Utes, and the way in which the Ute bands adapted to the civilization that had overrun them. A warrior culture at the time they were overrun and eventually confined to a reservation, they did not take up farming like the Bureau of Indian Affairs trustees wanted them to, although some did engage in cattle and sheep ranching – herding being the least traumatic (agri)cultural transformation from the hunter-forager way of life.

But what really caught the Ute imagination was the idea of taking over the development of their gas and oil reserves, a leap over the usual agricultural transition, right into industrial culture, a competitive field that may have spoken to their residual warrior spirit. They chose, however, to plunge into capital development their way, the ‘Indian way,’ essentially a ‘one for all and all for one’ social capitalism rather than the mainstream’s ‘rugged individualist’ route of private capitalism – enabling them to collectively accumulate wealth from the fat years for the coming lean years.

But what about the other First Peoples in the Colorado River Basin – how have they adapted? Some of the other warrior Peoples retained their lack of enthusiasm for the farming way of life. The Navajo Indian Irrigation Project (NIIP), a system of canals and laterals to irrigate ultimately around 110,000 acres from the Navajo Reservoir on the San Juan River, was begun in the 1960s to facilitate a transition to farming; but when the first allotments of the NIIP land were ready for farming, not very many Navajo were interested. They had come from the far north with herds of sheep, and liked the herding way of life. So what the Navajo leaders decided to do with their irrigated land was to also jump straight to the ‘civilization’ stage. Like the Southern Utes with their fossil fuels, they hired Euro-American consultants and managers to create an agribusiness operation on the reservation, raising food for regional, even national markets as well as themselves. Today, the reservation’s community colleges prepare young Navajos for those management positions in the tribe’s agribusiness, with dividends distributed to the people. Meanwhile many of the Navajo People have individually continued small-scale family herding as their accommodation to agricultural adaptation.

Many of the other desert-based First Peoples, however, were willing to embrace the farming life – but most of them were already farming Peoples long before the Euro-Americans arrived. This is especially true of some of the First Peoples in Arizona – the Basin state most blessed with First Peoples, 23 of the 30 groups. A large number of those tribal groups could actually be called ‘post-civilization’ farmers, especially the ones in the valleys of central Arizona’s Gila and Salt River Basin: groups now known as the Salt River Pima-Maricopa Indian Community, the Gila River Indian Community, the Ak-Chin Indian Community and the Tohono O’odham Nation. These Peoples all claim descent from the Hohokam (or Huhugam) People, an advanced irrigation culture probably comparable at its peak to the early civilizations of Asia Minor’s Fertile Crescent.

The story of the Hohokam – what we can deduce about it – was probably a classic illustration of the Holocene ‘trauma of success’ cycle: population growth driving a transition from hunter-forager to either warrior cultures fighting over territory and food, or ‘defensive agriculture’ to create defensible food supplies. That transition in turn led to farming surpluses feeding more population growth and forcing them into ever more urbanized and industrialized cultures: the ‘civilization’ stage that eventually, like all civilizations so far, imploded from too much density, complexity, and inequity between managing and working classes. 

As best the archaeologists and surviving tribal peoples can estimate, the Hohokam culture probably reached its civilized peak in the 13th and 14th centuries by the European calendar, having spread through the entire Gila River Basin in southern Arizona, with more than 150 miles of canal works good enough to have been cleaned out and reused by early Euro-American settlers, and highly developed towns and cities in the Sonoran Desert with multi-story buildings, probably resulting from cross-fertilization with the master builders of the Ancestral Puebloan civilization in the San Juan River and Mogollon Rim regions. The division of labor to keep everyone busy extended to supporting artists creating beautiful pottery and other ‘high culture’ activities. All accounts of the Hohokam mention their ‘ball courts’; one imagines a kind of ‘professional’ NFL among the Hohokam centers. But by the mid-15th century, barely a century before the Spanish entrada, it all fell apart, probably triggered by a major drought on top of the constant problem of silted canals, and also probably the usual challenges of density, complexity and class inequity.  

Groups that survived the conflict, chaos and starvation following the collapse, went back to local community subsidence farming, still irrigating from the Gila River and its tributaries. But within the following century, the European invasion commenced, with the new European diseases moving out ahead of the waves of Second Peoples, clearing out half to three-fourths of the First Peoples who were otherwise in the way of the manifest march of Christian industrial civilization. 

Most of the Spanish entrada split around the subtropical Mojave and Sonora deserts, moving up into ‘Alta California’ and into the less forbidding high deserts of the Rio Grande Basin, thus only impacting the Colorado River Basin relatively lightly. But with the end of the War with Mexico, and the Mexican Cession that turned ‘El Norte’ into ‘the American West,’ the pace picked up; the basin became both a highway and stopping-point for gold-rush unsettlers and agrarian settlers.

That was the period when confining the tribal Peoples to reservations began in a serious way in the Colorado River region – get’em outa the way. With the warrior Peoples, the reservations were regarded by both sides as prisons – in 1863 the U.S. Army, angered by the Navajo’s raiding, launched a massive attack on them, burning every village they could find and rounding up the Navajo, putting them on a death march to a barren place in eastern New Mexico far from their adopted homeland. They were prisoners of war, and treated as such, until they were transferred in the late 1860s from care and keeping of the War Department to the new Office of Indian Affairs, and the surviving Navajo were marched back to a piece of their old homeland.

But at that same time – in 1864 – a group of First Peoples who were trying to farm in the floodplain of the Colorado River went to Charles Poston, an Indian agent, and requested that he get the government to create reservations for them. This group, since known collectively as the ‘Colorado River Indian Tribes,’ felt they were going to be pushed out of their homeland by white homesteaders and gold prospectors claiming land and water under laws never really explained to the First People. They were willing to give up their traditional hunting grounds upland from the river if they could be assured that they could continue to have the floodplains for farming. Poston arranged for that, and the People named a village on their reservation for him. 

Things did not go entirely smoothly for the Colorado River Indian Tribes, however, after their reservations were created; the BIA started crowding them by moving in portions of other tribes  – and during World War II, 17,000 Japanese-Americans were held there as part of the shameful internment policy. The Colorado River Tribes were compensated for all that, however, by getting a weir, Headgate Rock Dam, built across the river to keep water in their canals – both dam and canal being built with Japanese labor during the war. I don’t know whether it is ironic or just interesting to note that one of the few domestic projects built during a time of war production rationing of everything, was a dam for a group of Indians.

But by the time the dust of the Euro-American invasion across the continent had settled after the turn of the 20th century, the First Peoples found themselves – from their perspective – either confined on reservations or protected by the reservation, depending on the life they had lived before the advent of the Second People. 

Either way, though, they found themselves with limited or no legal access to essential water, despite the 1908 Supreme Court Winters decision saying they had ‘federal reserved water rights’ dating from the creation date of their reservation. But during the decades before and after that decision, the Euro-Americans had essentially appropriated most of the West’s water for their own agriculture, towns and cities, and industries under Euro-American laws – at a time when the federal policy on the trust responsibility was to ‘civilize the Indians’ through forced cultural assimilation and dispersion from the reservations into the general populace, thus (they hoped) eliminating any reservation water issues. 

But by the 1970s, after the American Indian Movement had gained more popular support for the First Peoples than for the government agencies trying to control them, it was clear that forced assimilation was not going to work. The government was faced with the fact that the trust relationship obligated them to help the First Peoples carry out the initial purposes of the reservations. 

On the western reservations, this meant getting enough water on the land to nurture ‘civilizing’ agriculture. The federal response to this obligation ran a political spectrum from outright denial of the responsibility (as reflected just this past summer in the Supremes’ decision that the Interior Department had no treaty-specified responsibility for helping the Navajo determine their water rights), to efforts to actually provide water access through projects like the Navajo Indian Irrigation Project – but with no resolution of total reservation water rights. Ambiguity reigned.

Often left to their own devices, the First Peoples knew they could go to court in the wake of the Winters decision and sue for what they believed would be an appropriate quantity of water. But neither the Euro-American courts nor the federal bureaucrats had any appetite for telling other Euro-Americans that they had to give up some or all of their water for the People there first. The court process was usually lengthy, often decades, and tilted toward those already using the water – as the Jicarillo Apaches learned when the court awarded them only a sixth of what they needed. As a Justice Department lawyer put it, ‘When an economy has grown up premised upon the use of Indian waters, the Indians are confronted with the virtual impossibility of having awarded to them the waters of which they have been illegally deprived.’ 

There was the further fact that the courts would only quantify a water right – ‘paper water,’ useless until systems existed to put it to use. So the First Peoples went to an alternative: to sit down with all involved parties, the feds, the state, the current water users, and work something out – with the lurking threat that, if negotiations didn’t work, then everyone should plan to spend a lot of time and money in court. The People knew they would have to give up some of the water they deserved, but would hope to get out of the process some help in developing what water they could get. The ‘bird in hand’ strategy: an acre-foot of ‘wet water’ running to a field is better than two acre-feet of ‘paper water’ in the courthouse.

The settlement process began in the 1970s; by the 1990s, the Interior Department had made it a formalized process, and encouraged it over going to court. Congressional approval of most settlements is required, especially when appropriations are involved for new physical structures or payouts to Second-People farmers or communities who lost water to the tribal Peoples in a settlement. Some of the costs are to be shared by the states, individuals and tribes involved, and the cost of a settlement to the government is supposed to be no greater than a reasonable estimate of the cost of adjudication if it went to the courts.

To date, Colorado River Basin First Peoples have worked through 14 different water rights settlements, most of them in the Gila-Salt-Verde River Basin; the settlements range in size and expense from 1,550 acre-feet of water for the Yavapai-Prescott People near the Verde River with total settlement costs of $200,000, to 653,500 acre-feet for the Gila River Indian Community (including most of Southern Arizona’s Tonono O’odham Nation) at a settlement cost of more than $2 billion. For those interested in pursuing this in more depth, the Congressional Research Service has a good report on ‘Indian Water Rights Settlements.’

What most interests me, however, is how ‘civilized’ this process appears to be: to realize there’s not enough water for everyone to get all they would like, but rather than deciding it on the basis of ‘I was here first,’ or ‘my use is more important than your use’ – let those things be said, but then go on to figure out how to equitably make do with what you all have. Maybe with some new structures, maybe some new efficiencies, maybe general conservation, maybe paying for some water now to avoid paying a lawyer later. But at the end of it all, there’s a settlement that works somewhat for all parties for at least the time being. It seems too simplistic to call such settlements ‘win-win’; a durable settlement will be one in which the parties feel their losses do not exceed by too much what they’ve gained. And that may be as good as it’s going to get in the Anthropocene.

Teresa Pijoan, a Pueblo-raised Indian story-teller, told me years ago that most stories of the First Peoples end with a sense of balance either created or restored. Stories of the Second People, on the other hand, tend to end in a win for the good guys; if they don’t, the story is a tragedy. The seven basin states – each its own idea of ‘the good guys’ – have a history of working for the win; the current efforts to negotiate a new or modified management scheme for post-2026 already have opening positions promising to ‘focus on making our own state stronger’ (Colorado water leader). With the river already reduced by a third from the good old days of the Colorado River Compact, no state is likely to come out ‘stronger’; but we might all come out better (if only ‘better people’) if we work from a whole-river perspective, to balance equitably the losses inevitable in facing Anthropocene realities. I think we need the First People at that table; they already understand negotiation in a harsh environment.

Next post – probably a look at how the ‘2026 project’ is, or isn’t, shaping up, and some unsolicited thoughts that are probably not going to happen, given ‘the way we do things,’ otherwise known as ‘Western Civilization’.….

by Mark Olalde, ProPublica, and Anna V. Smith, High Country News

ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for The Big Story newsletter to receive stories like this one in your inbox.

Series: Waiting for Water:Tribes’ Fight for a Promised Resource

The U.S. Supreme Court ruled in 1908 that tribes with reservations have a right to water. But ProPublica and High Country News found that in the drought-stricken Colorado River Basin they face unique obstacles: a state that aggressively opposes them, a process that sometimes doesn’t provide infrastructure to access water and growing competition from other users.

In the 1950s, after quarreling for decades over the Colorado River, Arizona and California turned to the U.S. Supreme Court for a final resolution on the water that both states sought to sustain their postwar booms.

The case, Arizona v. California, also offered Native American tribes a rare opportunity to claim their share of the river. But they were forced to rely on the U.S. Department of Justice for legal representation.

A lawyer named T.F. Neighbors, who was special assistant to the U.S. attorney general, foresaw the likely outcome if the federal government failed to assert tribes’ claims to the river: States would consume the water and block tribes from ever acquiring their full share.

In 1953, as Neighbors helped prepare the department’s legal strategy, he wrote in a memo to the assistant attorney general, “When an economy has grown up premised upon the use of Indian waters, the Indians are confronted with the virtual impossibility of having awarded to them the waters of which they had been illegally deprived.”

As the case dragged on, it became clear the largest tribe in the region, the Navajo Nation, would get no water from the proceedings. A lawyer for the tribe, Norman Littell, wrote then-Attorney General Robert F. Kennedy in 1961, warning of the dire future he saw if that were the outcome. “This grave loss to the tribe will preclude future development of the reservation and otherwise prevent the beneficial development of the reservation intended by the Congress,” Littell wrote.

Both warnings, only recently rediscovered, proved prescient. States successfully opposed most tribes’ attempts to have their water rights recognized through the landmark case, and tribes have spent the decades that followed fighting to get what’s owed to them under a 1908 Supreme Court ruling and long-standing treaties.

The possibility of this outcome was clear to attorneys and officials even at the time, according to thousands of pages of court files, correspondence, agency memos and other contemporary records unearthed and cataloged by University of Virginia history professor Christian McMillen, who shared them with ProPublica and High Country News. While Arizona and California’s fight was covered in the press at the time, the documents, drawn from the National Archives, reveal telling details from the case, including startling similarities in the way states have rebuffed tribes’ attempts to access their water in the ensuing 70 years.

Many of the 30 federally recognized tribes in the Colorado River Basin still have been unable to access water to which they’re entitled. And Arizona for years has taken a uniquely aggressive stance against tribes’ attempts to use their water, a recent ProPublica and High Country News investigation found.

“It’s very much a repeat of the same problems we have today,” Andrew Curley, an assistant professor of geography at the University of Arizona and member of the Navajo Nation, said of the records. Tribes’ ambitions to access water are approached as “this fantastical apocalyptic scenario” that would hurt states’ economies, he said.

Arizona sued California in 1952, asking the Supreme Court to determine how much Colorado River water each state deserved. The records show that, even as the states fought each other in court, Arizona led a coalition of states in jointly lobbying the U.S. attorney general to cease arguing for tribes’ water claims. The attorney general, bowing to the pressure, removed the strongest language in the petition, even as Department of Justice attorneys warned of the consequences. “Politics smothered the rights of the Indians,” one of the attorneys later wrote.

The Supreme Court’s 1964 decree in the case quantified the water rights of the Lower Basin states — California, Arizona and Nevada — and five tribes whose lands are adjacent to the river. While the ruling defended tribes’ right to water, it did little to help them access it. By excluding all other basin tribes from the case, the court missed an opportunity to settle their rights once and for all.

The Navajo Nation — with a reservation spanning Arizona, New Mexico and Utah — was among those left out of the case. “Clearly, Native people up and down the Colorado River were overlooked. We need to get that fixed, and that is exactly what the Navajo Nation is trying to do,” said George Hardeen, a spokesperson for the Navajo Nation.

Today, millions more people rely on a river diminished by a hotter climate. Between 1950 and 2020, Arizona’s population alone grew from about 750,000 to more than 7 million, bringing booming cities and thirsty industries.

Meanwhile, the Navajo Nation is no closer to compelling the federal government to secure its water rights in Arizona. In June, the Supreme Court again ruled against the tribe, in a separate case, Arizona v. Navajo Nation. Justice Neil Gorsuch cited the earlier case in his dissent, arguing the conservative court majority ignored history when it declined to quantify the tribe’s water rights.

McMillen agreed. The federal government “rejected that opportunity” in the 1950s and ’60s to more forcefully assert tribes’ water claims, he said. As a result, “Native people have been trying for the better part of a century now to get answers to these questions and have been thwarted in one way or another that entire time.”

Three Missing Words

As Arizona prepared to take California to court in the early 1950s, the federal government faced a delicate choice. It represented a host of interests along the river that would be affected by the outcome: tribes, dams and reservoirs and national parks. How should it balance their needs?

The Supreme Court had ruled in 1908 that tribes with reservations had an inherent right to water, but neither Congress nor the courts had defined it. The 1922 Colorado River Compact, which first allocated the river’s water, also didn’t settle tribal claims.

In the decades that followed the signing of the compact, the federal government constructed massive projects — including the Hoover, Parker and Imperial dams — to harness the river. Federal policy at the time was generally hostile to tribes, as Congress passed laws eroding the United States’ treaty-based obligations. Over a 15-year period, the country dissolved its relationships with more than 100 tribes, stripping them of land and diminishing their political power. “It was a very threatening time for tribes,” Curley said of what would be known as the Termination Era.

So it was a shock to states when, in November 1953, Attorney General Herbert Brownell Jr. and the Department of Justice moved to intervene in the states’ water fight and aggressively staked a claim on behalf of tribes. Tribal water rights were “prior and superior” to all other water users in the basin, even states, the federal government argued.

Western states were apoplectic.

Arizona Gov. John Howard Pyle quickly called a meeting with Brownell to complain, and Western politicians hurried to Washington, D.C. Under political pressure, the Department of Justice removed the document four days after filing it. When Pyle wrote to thank the attorney general, he requested that federal solicitors work with the state on an amended version. “To have left it as it was would have been calamitous,” Pyle said.

The federal government refiled its petition a month later. It no longer asserted that tribes’ water rights were “prior and superior.”

When details of the states’ meeting with the attorney general emerged in court three years later, Littell, the Navajo Nation’s attorney, berated the Department of Justice for its “equivocating, pussy-footing” defense of tribes’ water rights. “It is rather a shocking situation, and the Attorney General of the United States is responsible for it,” he said during court hearings.

Arizona’s legal representative balked at discussing the meeting in open court, calling it “improper.”

Experts told ProPublica and High Country News that it’s impossible to quantify the impact of the federal government’s failure to fully defend tribes’ water rights. Reservations might have flourished if they’d secured water access that remains elusive today. Or, perhaps basin tribes would have been worse off if they had been given only small amounts of water. Amid the overt racism of that era, the government didn’t consider tribes capable of extensive development.

Jay Weiner, an attorney who represents several tribes’ water claims in Arizona, said the important truth the documents reveal is the federal government’s willingness to bow to states instead of defending tribes. Pulling back from its argument that tribes’ rights are “prior and superior” was but one example.

“It’s not so much the three words,” Weiner said. “It’s really the vigor with which they would have chosen to litigate.”

Because states succeeded in spiking “prior and superior,” they also won an argument over how to account for tribes’ water use. Instead of counting it directly against the flow of the river, before dealing with other users’ needs, it now comes out of states’ allocations. As a result, tribes and states compete for the scarce resource in this adversarial system, most vehemently in Arizona, which must navigate the water claims of 22 federally recognized tribes.

In 1956, W.H. Flanery, the associate solicitor of Indian Affairs, wrote to an Interior Department official that Arizona and California “are the Indians’ enemies and they will be united in their efforts to defeat any superior or prior right which we may seek to establish on behalf of the Indians. They have spared and will continue to spare no expense in their efforts to defeat the claims of the Indians.”

Western States Battle Tribal Water Claims

As arguments in the case continued through the 1950s, an Arizona water agency moved to block a major farming project on the Colorado River Indian Tribes’ reservation until the case was resolved, the newly uncovered documents show. Decades later, the state similarly used unresolved water rights as a bargaining chip, asking tribes to agree not to pursue the main method of expanding their reservations in exchange for settling their water claims.

Highlighting the state’s prevailing sentiment toward tribes back then, a lawyer named J.A. Riggins Jr. addressed the river’s policymakers in 1956 at the Colorado River Water Users Association’s annual conference. He represented the Salt River Project — a nontribal public utility that manages water and electricity for much of Phoenix and nearby farming communities — and issued a warning in a speech titled, “The Indian threat to our water rights.”

“I urge that each of you evaluate your ‘Indian Problem’ (you all have at least one), and start NOW to protect your areas,” Riggins said, according to the text of his remarks that he mailed to the Bureau of Indian Affairs.

Riggins, who on multiple occasions warned of “‘Indian raids’ on western non-Indian water rights,” later lobbied Congress on Arizona’s behalf to authorize a canal to transport Colorado River water to Phoenix and Tucson. He also litigated Salt River Project cases as co-counsel with Jon Kyl, who later served as a U.S. senator. (Kyl, who was an architect of Arizona’s tribal water rights strategy, told ProPublica and High Country News that he wasn’t aware of Riggins’ speech and that his work on tribal water rights was “based on my responsibility to represent all of the people of Arizona to the best of my ability, which, of course, frequently required balancing competing interests.”)

While Arizona led the opposition to tribes’ water claims, other states supported its stance.

“We thought the allegation of prior and superior rights for Indians was erroneous,” said Northcutt Ely, California’s lead lawyer in the proceedings, according to court transcripts. If the attorney general tried to argue that in court, “we were going to meet him head on,” Ely said.

When Arizona drafted a legal agreement to exclude tribes from the case, while promising to protect their undefined rights, other states and the Department of the Interior signed on. It was only rejected in response to pressure from tribes’ attorneys and the Department of Justice.

McMillen, the historian who compiled the documents reviewed by ProPublica and High Country News, said they show Department of Justice staff went the furthest to protect tribal water rights. The agency built novel legal theories, pushed for more funding to hire respected experts and did extensive research. Still, McMillen said, the department found itself “flying the plane and building it at the same time.”

Tribal leaders feared this would result in the federal government arguing a weak case on their behalf. The formation of the Indian Claims Commission — which heard complaints brought by tribes against the government, typically on land dispossession — also meant the federal government had a potential conflict of interest in representing tribes. Basin tribes coordinated a response and asked the court to appoint a special counsel to represent them, but the request was denied.

So too was the Navajo Nation’s later request that it be allowed to represent itself in the case.

Arizona v. Navajo Nation

More than 60 years after Littell made his plea to Kennedy, the Navajo Nation’s water rights in Arizona still haven’t been determined, as he predicted.

The decision to exclude the Navajo Nation from Arizona v. California influenced this summer’s Supreme Court ruling in Arizona v. Navajo Nation, in which the tribe asked the federal government to identify its water rights in Arizona. Despite the U.S. insisting it could adequately represent the Navajo Nation’s water claims in the earlier case, federal attorneys this year argued the U.S. has no enforceable responsibility to protect the tribe’s claims. It was a “complete 180 on the U.S.’ part,” said Michelle Brown-Yazzie, assistant attorney general for the Navajo Nation Department of Justice’s Water Rights Unit and an enrolled member of the tribe.

In both cases, the federal government chose to “abdicate or to otherwise downplay their trust responsibility,” said Joe M. Tenorio, a senior staff attorney at the Native American Rights Fund and a member of the Santo Domingo Pueblo. “The United States took steps to deny tribal intervention in Arizona v. California and doubled down their effort in Arizona vs. Navajo Nation.”

In June, a majority of Supreme Court justices accepted the federal government’s argument that Congress, not the courts, should resolve the Navajo Nation’s lingering water rights. In his dissenting opinion, Gorsuch wrote, “The government’s constant refrain is that the Navajo can have all they ask for; they just need to go somewhere else and do something else first.” At this point, he added, “the Navajo have tried it all.”

As a result, a third of homes on the Navajo Nation still don’t have access to clean water, which has led to costly water hauling and, according to the Navajo Nation, has increased tribal members’ risk of infection during the COVID-19 pandemic.

Eight tribal nations have yet to reach any agreement over how much water they’re owed in Arizona. The state’s new Democratic governor has pledged to address unresolved tribal water rights, and the Navajo Nation and state are restarting negotiations this month. But tribes and their representatives wonder if the state will bring a new approach.

“It’s not clear to me Arizona’s changed a whole lot since the 1950s,” Weiner, the lawyer, said.